What Makes a Will Legally Valid?

Each state sets its own requirements, but most follow a similar pattern.

The usual requirements

1. Age: at least 18 in nearly every state.
2. Capacity: the will-maker must understand that they are making a will, the general nature and extent of their property, and who their family members are.
3. Intent: the document must be intended as a will, made voluntarily, without undue influence or fraud.
4. Writing: oral wills are generally not valid, with rare exceptions.
5. Signature by the will-maker, or by someone else at their direction and in their presence.
6. Witnesses: most states require two adult witnesses who watch the will-maker sign, then sign themselves (Cornell LII). It is best to use witnesses who do not inherit under the will.

Notarization and self-proving affidavits

A will usually does not need to be notarized to be valid. But many states allow a self-proving affidavit, signed by the will-maker and witnesses before a notary, which lets the court accept the will without tracking down the witnesses later (Cornell LII).

Handwritten (holographic) wills

Some states accept a will written entirely or materially in the will-maker's handwriting and signed, even without witnesses (Cornell LII). Others do not. Relying on one is risky.

Electronic wills

Several states have enacted laws allowing electronic wills and remote witnessing. Rules vary widely.

Moving to another state

Most states will accept a will that was valid where it was signed. Still, it is wise to review your will after a move, especially for powers of attorney and health care documents.

What can invalidate a will

• Missing signatures or witnesses
• Lack of capacity or undue influence; see how to contest a will
• Revocation by a later will or by destroying it
• Divorce, which in many states automatically revokes provisions for an ex-spouse

Changing a will

Use a formal amendment (codicil) signed with the same formalities, or make a new will. Handwritten edits on a signed will can create disputes or be ignored.

Storing your will

Keep the original in a safe place your executor can access. Some courts and lawyers offer storage. A lost original can create a presumption that it was revoked.

An estate planning lawyer can supervise signing so the will meets every formality.

Sources

1. Cornell Law School LII: Will
2. Cornell Law School LII: Self-proving will
3. Cornell Law School LII: Holographic will